AG hopefuls spar over process to pick judges

by Howard Fischer - Jul. 8, 2010 12:00 AMCapitol Media Services

The procedure of how most judges are selected in Arizona is becoming an issue in the race for attorney general.

Andrew Thomas wants to let the governor choose whomever she wants to sit on the state's high court and courts of appeals. Thomas, the former Maricopa County attorney, wants the same system at work for judges in Maricopa and Pima counties.

Thomas acknowledged that what he wants would undermine the current system where a governor can choose new judges only from a list that special screening panels have determined are the most qualified. That would free the governor to pick an attorney based on political support and nothing more.

But he said the fact the governor has to run for election herself, as do the judges in some form, would ensure system accountability.

Tom Horne, his foe in the Republican primary, said the system may not be perfect. But Horne, currently the state schools superintendent, said it reduces political influence about who sits on the bench.

Until 1974, judges were all elected by popular vote, the same as other politicians. That year, voters altered the system so that those who want to be judges of the Supreme Court, Court of Appeals and in the two largest counties apply to special commissions. Panel members screen applicants and send a list of at least three names to the governor, no more than two of whom can be from the same political party. The governor is obligated to pick from that list.

Thomas said that hasn't removed politics from the system. Instead, he said, it happens out of sight, with those who want to be judges having their allies lobby the selection panel of "insider attorneys."

There is one panel for appellate-level judges and one each for Pima and Maricopa counties.

Thomas admitted the panels consist of five attorneys and 10 who are not lawyers. But he said the fact that the chief justice of the Arizona Supreme Court sits in on the process unfairly influences those who lack formal law training.

Rather than scrap the entire system, Thomas is proposing a hybrid. The panels would rate each of the applicants. But the governor would be able to choose from any attorney who applied in the first place, even ones who the panels concluded are not competent.

Thomas said, though, there are various constraints that would remain to keep a governor from choosing someone totally unqualified. "First of all, the governor has to stand for election," he said. "And the governor is accountable to the people. So that is a check on what the governor might do in that situation."

He also pointed out that judges selected this way will remain subject to having to stand for election on a retain-or-reject basis: Voters decide whether to keep them or toss them out, starting the selection process over again.

Horne said what Thomas wants would make the system too political. "The governor has a political agenda," Horne said.

While members of the selection panels have political viewpoints of their own, Horne said they have no specific legislation they want approved and no interest in selecting judges who would uphold those laws if challenged.

Thomas, however, said Horne's presumption is wrong. He said panel members do have their own political philosophies that reflect in who is nominated to the governor and who is not. The only difference, Thomas said, is that these agendas are not as in the open as that of the governor.

Aside from altering how judges are chosen, Thomas wants changes in the process for reviewing sitting judges who are up for retention. That includes having the Arizona Criminal Justice Commission review and analyze each judge's rulings on matters of public safety or where a voter-approved measure has been overturned.